Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Wednesday, June 27, 2018

The recently concluded ICON-S 2018 Conference provided a marvelous space to consider some of the thorniest emerging issue sin law, governance and (infra)structure that now confront lawyers, policymakers, and the global stakeholders who together build and maintain increasingly dense layered systems of governance managing individuals and institutions--including the state. The Call for Papers provided a nice summary of the focus:

The overarching theme of the Conference will be “Identity, Security, Democracy: Challenges for Public Law.” Modern identity struggles and the search for constitutional and legal mechanisms that can accommodate diversity occur at many levels including the national, supra-national, local, individual, and collective; and also involve multiple dimensions: ethnic, racial, religious, gender, sexual, and cultural, to name but a few. In recent years, identity claims and security issues have taken centre stage in law and politics, prompting realignment of domestic, regional and international orders. Technological advancement has to some extent countered traditional security concerns, but has given rise to new ones as well as to issues of privacy and political control. At the same time, democracy, a widely revered political ideal for addressing differences and realising human aspirations, is facing challenges in many parts of the world. How should public law respond to these changing circumstances? Asia – with some of the most diverse cultures in the world, where domestic and regional security threats and human rights violations loom large, and where democracy is a relatively recent and at times fragile phenomenon or still under experimentation – offers a unique setting for fresh thinking on these and other closely-related themes. (ICON-S).

My colleagues, Jernej Letnar Cernic, Surya Deva, Sarah Joseph and I were thrilled to have been able to organize a panel for the event: Constitutional Rights and Corporate Actors. We thought to consider issues around formal and informal linkages around human rights standards/principles among state based constitutional law, international law-standards frameworks, and societal governance modalities. The idea was to consider the way these linkages might provide a means, formal or informal, of transposing constitutional obligations once reserved to the state alone, to enterprises operating within and between states.

The Panel description follows, along with the abstracts (and some of the PowerPoints) of the presentations. The 2018 ICON-S Program may be accessed HERE.

Constitutional Rights and Corporate Actors.Constitutions
and constitutional rights are predominantly designed to control the power and
(non-)actions of state agencies within a given territory. Victims of corporate
human rights abuses have very limited means – either in their home country or
the country where the corporation in question is registered or, indeed, before
an international forum – to seek access to effective remedies. Against this
backdrop, this panel will explore the extent to which constitutional rights
provisions should and could directly apply to corporate actors both when they
do business at home and abroad. Drawing lessons from a number of jurisdictions
such as India, Europe and US, the panel will try to identify whether horizontal
application of constitutional rights can be regarded as a generally accepted
norm of comparative constitutional law.

Developments in business and human rights in the past decade reveal a division between voluntary and binding approaches to the questions of whether corporations have human rights obligations and whether they should be held accountable for their human rights impacts. Even though the proponents of both sides attempt to demonstrate that these approaches are not mutually exclusive, victims on the ground are today still witnessing the continuation of the status quo, mostly to the benefit of of major corporate players. Soft-law guidelines and principles do not create binding international legal obligations, but they merely restate the state-of-the-art in human rights law. Victims of corporate human rights have thus often encountered difficulties in enforcing their claims against corporations. They often find hurdles due to the absence of binding human rights obligations of corporate actors. On the other hand, national constitutions often include binding human rights obligations for both individual and legal persons, thereby creating also human rights obligations for corporations.

This paper, therefore, attempts to answer the question whether the constitutional provisions of domestic systems of the European states apply also to corporate actors.In doing so it examines selected ten countries from all regions of Europe in order to establish whether their constitutional documents bind also corporate actors. It further examines what is the nature and scope of such constitutional obligations. In the closing part of the article, conclusions are drawn on how those countries should proceed to reform the enforcement of corporate human rights obligations deriving from their constitutions. PowerPoint..

This paper will explore the extent to
which fundamental rights (FRs) provisions in Part III of the Indian
Constitution could be directly invoked against companies to hold them accountable
for human rights abuses. I will examine two issues related to this question:
the extent of horizontal application of FRs, and the relevance of corporate law
(principles of separate corporate personality and limited liability) to this
constitutional law question.

The FRs are generally available against
the ‘state’ as defined by Article 12 of the Indian Constitution. The definition
of ‘state’ includes ‘other authorities within the territory of India or under the control of
the Government of India’. The Supreme Court has
extended considerably the meaning of ‘other authorities’ by developing an
instrumentality test. However, I will argue that the instrumentality test is
not suitable to meet the complex challenges posed the privatisation of
governance and economy. The solution to achieve an optimal horizontal
application of FRs might lie either in an amendment of Article 12 or the
judicial enunciation of a new test that focuses more on functions of private
non-state actors.

Moreover, even if an optimal horizontal
application of FRs is achieved in principle, this might not result companies
held accountable for human rights abuses in practice, as companies might plead
principles of separate corporate personality and limited liability to deny or
limit their liability. The paper will, therefore, also consider the tools that
courts could employ to mitigate the negative effect of these corporate law
principles on the enjoyment of constitutionally-guaranteed FRs.

The United States Constitution, as well as those of many of
the states in the Union, contain extensive and well known categories of
fundamental rights which are protected against the assertion of governmental
power. They provide substantial protection of
property, of life and liberty interests of persons against the state, but have
traditionally offered far less well defined protections of economic, social or
cultural rights except to the extent they might be extracted from
constitutionally derived protections against discrimination against a growing
list of recognized categories—among them race, religion, ethnicity, sexual
preferences.

This paper considers whether and to what extent—formally or
functionally—the traditional constitutional constraints on government might be
asserted against non-governmental authorities exercising governmental power.
The question is made more complicated because the object of constitutional burden is also a bearer of substantial constitutional rights. The paper first considers the scope of constitutional protections for human rights int he U.S. These emphasize political and civil rights, privilege religion, and ficus on anti-discrimination obligations. Second,it examine the limits of constitutional imposition through
the lens of the corporation as a constitutional rights holder. Third,it considers the Corporation as a bearer of constitutional
duty within a jurisprudence that draws a fairly hard line between public and private actors,
whatever the functional effect of their actions. Lastly it examines the reach of international law, and its utility in any project to project national constitutional human rights obligations on enterprises.

The paper then considers possible avenues for creating
regimes that effectively transpose at least functional constitutional
obligations onto private actors. There are several avenues worth
considering. First, either federal or
state legislation can transpose constitutional obligation against states into
legal obligations that may be asserted against enterprises. Second,
corporations could be encouraged to adopt these duties as a matter of internal
governance and in their contracts with their stakeholders. Finally, an
international law-norm approach will be considered. The limitations of these approaches will then
be considered, including among them the possibility that corporations can
challenge such legal regimes as violations of their own constitutional rights
against governmental interference, that the complexity and limitations of
effective applicable scope may make the approaches unworkable, and lastly that
they will have little effective scope of remedy.PowerPoint:

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

The author holds a faculty appointment at Pennsylvania State University. Notice is hereby given that irrespective of that appointment, this blog serves as a purely personal enterprise created to serve as an independent site focusing on issues of general concern to the public. The views and opinions expressed here are those of its author. This site is neither affiliated with nor does it in any way state, reflect, or represent the views of Pennsylvania State University or any of its entities, units or affiliates.

Ravitch and Backer's Law and Religion: Cases, Materials, and Readings

3rd Edition 2015

Broekman and Backer, Signs in Law

Springer 2014

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Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.